THEA~ORNEY GENERAL 

May 5, 1959 ‘~ .,1_ .” 

Honorable Jules Damiani, Jr. 

District Attorney 

Galveston County Courthouse 

Galveston, Texas 

Opinion No. ~~-614 

Rye : Proposed resolution of 

the Commissioners' 

Court of Galveston County regarding the working 

conditions of the Road 

and Bridge Employees and 

Dear Mr. Damianl: other employee benefits. 

You have requested our opinion regarding the validity 

of the proposed resolution of the Coyissioners' Court .of 

Galveston County. It recites that: the Commissioners' 

Court of Galveston County has heretofore'discussed with the 

Road and Bridge Employees of the County and their designated 

representatives, ways and means for improving work conditions 

and other matters, for the Road and Bridge Employees of Gal- 

;eston County, . . .' It also provides for setting forth 

. . . a policy for the guidance of the Commissioners' Court 

and said Road and Bridge Employees." 

The proposed resolution consists of twenty-one 

Articles which are entitled as follows: Dues Deduction for 

Union mployees, Seniority, Hours of Work and Working Schedule, Overtime and Holidays, Pay Days, Assignment of Work, 

Sick Leave, Safety, Stewards and Officers, Funeral Allowance, 

Jury Service, Bulletin Boards, Benefit Plans, Construction 

Work, Discrimination, Protective Clothing, Longevity Pay, 

Vacations, Grievance Procedure and Arbitration, Discharge, 

Appliaatlon of Provisions Herein. 

The County Commissioners' Court is a body exercising 

delegated powers for t;he purpose of carrying out State funotions. Furthermore, . . . It is a settled rule of law in 

this State that, where a Commissioners' Court exceeds Its 

power, attempts to allow and settle aacounts not legally 

chargeable against the county, its act's are void and may be 

revoked at any time, or may be attacked collaterally in a 
Honorable Jules Damianl, Jr., page 2 (~~-614) 

court of general jurisdiction." Likewise J “Commissioners1 

courts, having limited jurisdiction, may act only within 

the sphere of the powers and duties--express or implied-- 

conferred upon the; by the Con,stitutlon and statutes of 

this State. Howard v. Henderson Count 

2d 479, (CXv.App.'1938 error refT ~T%FTE& .Kt,Z* 

and wages and the reguiatlon of working con,dltlons has 

traditionally In Texas County government been accomplished 

by statute OP by delegation oft legislative powers to the 

Commissioners' Court. However, we find no constitutional 

or statutory authorization for a collective bargaining procedure or for the recognition of ~a union of comity employees. 

Section 18, Article V of the Cons'citutio,n of Texas 

provides that: 

I! 

. . . The County Commissioners so 

chosen, with the County .Judge, as presiding officer, shall compose the County Commissioners Court, which shall exercise such 

powers and jurisdiction over all county 

business, as is conferred by this Constitutution and the laws of the State, or as may 

be hereafter prescribed." 

Article 2351, Vernon's Annotated Civil Statutes, 

provides that the Commissioners' Court shall: 

II 6. Exercise general aontrol over 

all roads; highways ,,,ferries and bridges in 

their county., . . 0 

Attorney General's Opinion O-4266 (1941) held: 

(1 

. . . the wages or compensation of men 

working by the month for the various County 

Commissioners should be set or made under 

the authority of a resolution or order duly 

passed at a meeting of the' Commissioners' 

Court and entered upon the minutes of such 

meeting." 

Attorney General's Opinion V-1151 (1951) held that: 

"The Commissioners' Court in a county 

operating under the provisions of the optional County Road Law of 1947, (Art. 6716-1, 
Honorable Jules Damiani, Jr., Page 3 (~~-614) 

V,C.S.) may raise the salaries or wages 

of road department employees without the 

recommendation and over the protest of 

the County Road Engineer." 

In Foreman v. Gooch, 184 S.W.2dy481, 484 (Civ.App. -.-~ -- lo&$), Writ ref. W.M., the Commissioners' Court duly 

adopted an order providing that interest should be paid 

on warrants issued to the employees of the road and bridge 

department. In holding that a writ of; mandamus should properly Issue to the county auditor of Jefferson County re- , 

quiring him to countersign such warrants, the court said: 

We are of the opinion that 

such interest as may accumulate on said 

warrants before they are called for payment is a part of the compensation for 

services performed, as much so as a per 

diem wages or salary agreed upon, 

I, 

. . I 

"We feel that it will serve no good 

purpose to enter into a lengthy discussion 

of the constitutional and statutory provisions and the cases cited dealing with 

the power of the Commissioners' Court. We 

content ourselves by saying that i.t is our 

opinion that the Commissioners1 Court had 

the authority, under Article 2351 R.C.S. 

and Article 5, Section 18 of the state Constitution, to make the contract above referred to with the employees of the road 

and bridge department, and having done so 

in advance of the rendition of the servlces by such employees, t&y were authorized 

to order the issuance of the interest bearing warrants in questl.on, limited only by 

the amount of the current fund at their disposal, which included money In the treasury, 

taxes in process of oolleationjdurlng such 

t.ax year, and all other revenue's which may 

be anticipated with reasonable certainty 

during such tax year." 

Attorney General's Opinion No. O-4140 (1941) considered the implied powers of a navigation district and 

compared the same to the powers of a Commissioners' Court. 
Honorable Jules Damlanl, Jr., Page 4 (Ww-614) 

We quote from such opinion as follows: 

"It Is a well established principle of 

,law that the county commissIonerat courts 

may exercise only such power as expressly 

or by necessary Implication (sic) given to 

said courts by the Constitution and Statutes. 

This prlnolplels SO well established and 

there arc'80 many authorities supporting the 

same, we deem it unnecessary to cite any of 

such authorities. Therefore, we think that 

a navigation district Is subject to the rule 

that it must be authorized by statute, either 

expressly or by lmpllcation, to exercise any 

authority or power which it does exercise. 

"As stated above, the Harris County Navlgation District is a political subdivision of 

the State and certainly Its funds are public 

funds. Therefore, the several provisions of 

the State Constitution limiting the use of 

public funds by its subdivisions do, we think, 

apply to the Harris County Navigation District. 

"The pension system of the City of Dallas, 

which had been adopted some years before the 

Legislature had authorized city pensions, was 

upheld In the case of Byrd vs. City of Dallas, 

6 S.W. (2d) 738, and in considering several of 

the constitutional provisions mentioned above, 

it was held that they had no rclatlonto a contract between a municipal corporation and its 

employees, but were Intended to Prevent the 

application of public funds to private purposes. 

The pension was held not to be a gratuity, but 

a part of the aompensation of the employee for 

services rendered. Subsequently, in the case 

of City of Dallas vs. Trammel, 101 S;W. (2d 

1009, the rule as to the pensions were (sic 1 

reiterated, but It was pointed out that the , 

pensioner has no vested right in future installments and that the amounts payable may be 

increased or diminished. 

1, 

. . . 

"It Is quite common for the State and the 
Honorable Jules Damiani, Jr., page 5, (WW-614) 

various subdivisions of the State government 

to agree to furnish, as part of the compensation of the employee, living quarters, groceries, automobiles, etc. . . . 

11 

. . a 

"It is our opinion that the medical services and hospitals fasilities furnished employees of the Navigation District are sustainable 

as a part of their earned compensation where 

the Board has made general provisions therefor. 

In other words, the Navigation District has 

authority to agree, as part of the agreed compensation to be paid employees, to furnish 

stipulated services for hospitalization, drugs 

and medical attention. However, these cannot 

be unlimited in amount or kind, and must, therefore, be for some reasonable fixed maximum amount." 

In Gulf Bitulithic Co. v. Nueces County, 11 S.W.2d 

305, 313 (Com.APP. 19287 

_I-, 

the Commis~r~ourt employed 

an agent to reconstruct :he county roads after a disasterous 

hurricane. The court held: 

"The commissioners' court of' Nucces county, 

under the power vested in it by law, had the 

right to build and construct its publip roads 

without letting a contract therefor, If it saw 

fit to do so. The power to build such roads 

necessarily implied the addi~tlonal power to employ such agents as might be reasonably necessary to accomplish such purpose. In fact, there 

Is express statutory authority for the employment 

of such agents. Article 1580, R.S. 1925. If it 

had the power to employ plaintiff in error to 

supervise the building of its roads, which cannot 

be seriously questioned, it necessarily follows 

that it could employ it for such length of time 

as was reasonably necessary to complete such 

work. . . -" 

In Dodson v. Marshall, 118 S.W. 2d 621, 624 (Civ.App. 

1938) writ dismissed;~&zo Court of Civil Appeals was 

concerned with the legality of th e renting by the Commlssioners f Court of Grayson County of a small alcove in the 

courthouse to the operator of a cold drink stand. Justice 

Alexander said: 
- 

Honorable Jules Damlanl, Jr., page 6 (WW-614) 

II 

. . . It should be noted in this 

connection that the contract here under 

consideration Is terminable at the will 

of the commissioners, and that~ the court 

has not ,parted with its control over the 

premieeer. . . . 

. 

"Of Course, we recognize that If the 

commisslonerst court shouldlease for the 

purposes Indicated space that was needed 

for county offlces'or other purposes or 

should grant a lease for such a time as 

to unreasonably interfere with the right 

of the court to regulate the use of the 

courthouse, OP should otherwise materially 

Interfere with the use of the courthouse 

as a whole Car the purpose for which it is 

Intended, said court might thereby exceed 

Its jurisdiction or there might be a clear 

abuse of discretion, in which event the 

district court in the exercise of its supervisory powers would have a right to 

intervene. But so long as there is a 

reasonable exercise of the discretion vested 

In the commissioners' court in a matter wlthIn its jurisdiction, that court alone has the 

right to determine the policy to be pursued 

and the district court has no authority to 

Intervene. Schlller v. Duncan, Tex.Clv.App., 

21 S.W.2d 571, pars. 1,2; Kin 

ty, Tex.Clv.App., 42 S.W.2d 4 8 1 pars. 5,6; 

v. PallsCounSlimp v. Wise County, Tex.Civ.App., 96 S.W.2d 

~,Y~;,,;Fs. 7-g; Tarrant County v. Shannon, 

104 S.W,2d 4, par. 5. The frequently 

recur&i biennial elections at which the commissioners are required to account to the electorate for their conduct in matters of this kind 

furnishes sufficient protection to the public 

against ordinary indiscretion not amounting to 

a clear abuse thereof by the commissioners' court. (1 

. , , 

Attorneg,General's Opinion No. V-110 (1947) held 

that a Commissioners' Court did not have authority to 

enter into a collective bargaining contract with a labor 

union "when such agreement undertakes to limit the Com- 
- . 

Honorable Jules Damiani, Jr., page 7 (~~-614) 

missioners' Court's authority as to the conditions of employment, working hours, vacttions, and other matters 

relating to such employment. 

An Increase in compensation cannot be granted to 

apply retroaqtlvely, for to do so would be a olear vlolatlon of Section 53 of Article III of the Constitution of 

Texas See Fmplre Gas and Puel Co. v. State, 121 Tex. 

138, 47 S,W.??d 2b5 Plercs%?i v. Galvesto6i7?ounty, $31 

S.W.2d 27 (Civ.Appf m;'~ ~' But an employee's service to 

the county prior to the effective date of the resolution 

does not have to be disregarded. See Byrd,v. 

Dallas, 118 Tex. 281, 6 S.W. 2d 738. 

City of 

Thus, in the employment of its road and bridge employees, the Commissioners' Court has the authority and 

duty to make reasonable provision for their compensation, 

working times~ and working conditions. This is a continuing 

duty and the Commissioners t Court can change such provisions 

from time to time. Part of such compensation may be in the 

form of reasonable "fringe benefits" so long as provision 

therefor is made in advance of the services being rendered. 

It could provide for wages, weekly pay days, longevity pay, 

overtime pay, hours of work, working schedule, work assignments, vacations, holidays,sick leave, time off for performing jury service, time off for attending funerals of 

close relatives, safe and sanitary working conditions, lnvestigatlon of accidents, protective clothing, and employeeelected stewards to attend to grievances. 

Likewise, the Commissioners' Court can employ agents 

for a period that is long enough to get a specific task accomplished, but no longer, It has a general power of control over roads and bridges, and this power cannot be surrendered, delegated or limited by contract or by a resolution such as the one under consideration. Any attempt to 

create vested rights In the road and bridge employees in 

derogation of such power would be ultra vires and void. 

It is our opinion that those parts of the proposed resolution in conflict with such general power of control would 

be void. In this connection, we invite your further consideration of the 'proposed resolution with particular attention 

to the provisions pertaining to seniority, grievance, dlscharge and arbitration. 

It is our opinion that In the absence of specific 

statutory authority the Commissioners1 Court could not 

provide for the deduction of union dues from the wa es of 

union employees. Attorney General's Opinion No. V- 8 87 
I - 

Honorable Jules Damlani, Jr., page 8 (m-614) 

(1948) held In connection with Section 1 of H.B. 420, Acts 

of the 50th Legislature, Regular Session, 1947: 

"Since the Act , does not contain any 

provision authorizlng'the ,oounty auditor to 

oollec& and pay premiums therefor from the, 

county empioyces,t salaries, you ape respectful- 

:, ly advlscd that In the absenac of suoh authority 

it Is the opinion of this Department that the 

county auditor cannot collect and pay premiums 

on such a group insurance plan under the provlsions of said Act." 

It is our opinion that the Commlssionerst Court c'ould 

allow a labor union to use county bulletin boards with county 

officials and the general public but such use could not be to 

the exclusion of others. 

(1947) held: 

Attorney General's Opinion V-301 

"A Commissioners Court may allot additional 

offices to the county clerk, if needed, for 

furnishing space to the general public to inspect and copy records, but may not grant space 

In the county courthouse to an abstract company 

for an office in which to conduct its business 

to the exclusion of all others." 

Section 4 of Article 5154(c), V.A.C.S., provides that: 

1, 

ployment by 

no person shall be denied public emreason of membership or non-membership In a labor organization." 

Section 2 of Article 5207(a), V.A.C.S., provides that: 

llNo person shall be denied employment on 

account of membership or non-membership in a 

labor union." 

Therefore, It Is our opinion that it would be proper 

for the Commissioners' Court to resolve that persons shall 

not be discriminated against, discharged or harassed because 

of such membership or non-membership. 

Article 5159(a), V.A.C.S., provjdes: 

"Section 1. Not less than the general prevailing rate of per diem wages for work of a 
- * 

Honorable Jules Damlani, Jr., page 9 (WW-614) 

similar crharacter lnthe locality In which 

the work is performed, and not less than 

tha general prevailing rate of per diem 

wages for legal holiday and overtime work, 

shall~ be paid to all laborers,'workmen and 

mechanics employed by or on behalf of the 

State of Texas,,or by or on behalf of any 

co,unty, c$,ty and county, city, town, district or other politlaal subdivision, of the 

Stat@, engaged In the construction of public 

works, exclusive of maintenance, . . . 

"Sec.' 2. The public body awarding any 

contract for public work . . . shall ascertain 

the general prevailing rate of per diem wages 

in the locality ., . . for each craft or type 

of workman . also the prevailing rate for 

legal holiday'and overtime work, . . ." 

In Southern Prison Co. v. Reynolds, 110 S.W.2d 606 

(Clv.App.) 1937,t stated: 

"Since the power and duty of determining 

the prevailing per diem wage rate for the 

work on this contract was vested in the Commissioners1 Court, it was not authorized to 

ignore such power and duty in its discretion." 

It Is our opinion, therefore, that the Commissioners' 

Court would be obligated to observe this duty at all times. 

Attorney General's Opinion No. O-7011 (1946) was concerned with the question of whether or not a county-district 

clerk could operate in his county office an abstract firm 

and use county help, equipment and utilities in the operation 

of said firm. The question was answered in the negative in 

the following language: 

"We know of no authority for the Commlssioners~ Court to expend county funds 

for office equipment and supplies to be 

used for purposes other than 'county purposes.' Moreover, we know of no authority 

for a county officer to use fees of office 

to pay help used by said officer for a 

purpose other than that of carrying out 

the duties and functions of the office. 
P , 

.* 

t 

6 

~, Honorable Jules‘Damiani,~ J,r..,,.page 10 (~~-614) 

Ther,efore, lt~isour opinion that tending to union 

business and furnishingthe union with six copies of 

quarterly overtime reports would'not be among the duties 

andfunctions of the road and bridge employees 'and the 

commissioners , ,respectipely. ~ 

As stated above, we find no authorization, for a 

collective bargaining proaedure or for the recognition of 

a union a8 the bargaining agent for County employees. 

We are-attaching oonies of'the various earlier oplnIons referred to her&. - 

: ., 

I 

.r; 

JH.:rm 

:. 

SUMMARY 

i 

A Commissioners' Court has the power 

to make reasonable provision for the 

compensation (Including "fringe benefits"), working times and working 

conditions of-the road and bridge employees, provided this ls$done before. 

the services are rendered. A Cot&nisaboners' Court cannot ~llmlt its power 

to'provl,ae for, or change, these matters,at.~any time, It cannot pay, a 

portion of the wages of road and bridge .I' 

employees to a labor unionwithout statutory authorization> an8 It cannot use 

county help to perform services for a 

labor union.! It can allow a labor urilon 

and others to make reasoqable,use of, 

county bulle)t n boards. 

R 

U,must provides 

for,the payme t of the prevailing wage 

by,a,ounty contractors. It can provide 

that road and brAage employees shall,not 

be discrl lnatedagainst because of union 

ornon-u r-i&o n member&!ip.'! ,. 

.$ 

,c. Yours ve&truly, 

.i 

,WILL WT&S@N ,< 

Attopef G;neral of Texas 

/It 

- ‘Jay Howell. 

Assistant 
Honorable Jules Damlani, Jr., page 

APPROVED: 

OPINION COMMITTEE 

Qeo. P. Blackburn, Chairman 

Milton Richardson 

Jack Goodman 

W. R. Hemphill 

C. Dean Davis 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: W. V. Geppert